Sunday, August 17, 2014

Ham sandwich time in Texas: The Perry Indictment

It is said that grand juries are so much in thrall to the power of prosecutors, the latter could indict a ham sandwich. Well, on Friday a special prosecutor didn’t indict a ham sandwich but instead charged Texas governor Rick Perry with the commission of two state crimes. However, when all is said and done, when the political vendetta is exposed and over with, the prosecutor will have choked on his sham indictment.

First, a quick lesson in Criminal Law 101’s prosecutorial burdens. The prosecutor must convince [1] a unanimous jury, [2] beyond a reasonable doubt, [3] overcoming the presumption of innocence, [4] with the criminal statutes’ meaning strictly construed against the State, [5] of every essential element of each crime charged.

Please put aside all the premature, and much erroneous, commentary that’s been generated in the last 48 hours, and follow me into the sketchy, bare-bones, superficial, unprovable, less-than-two-page indictment to see what those essential elements are under Texas law.

Count I: Perry “intentionally or knowingly misused government property by dealing with such property contrary to an agreement under which defendant held such property contrary to the oath of office he took as a public servant . . . which were approved and authorized by the Legislature . . . to fund the continued operation of the Public Integrity Unit [of the Travis County District Attorney’s Office]”

Translation: Perry vetoed the appropriation.

Though not cited in the indictment, this sounds like the Texas law entitled “Abuse of Official Capacity.”

V.T.C.A., Penal Code § 39.02
§ 39.02. Abuse of Official Capacity 

     (a) A public servant commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly:

          (2) misuses government property, services, personnel, or any other thing of value belonging to the government that has come into the public servant's custody or possession by virtue of the public servant's office or employment.

Although much of the preliminary commentary about the indictment seems to believe that Count I charges Perry with the threat to veto (surely not a crime, even in Texas), the language quoted above—“dealing with such property”—albeit somewhat opaquely, alleges that he violated Section 39.02 by his actual veto. I’ll get to the threat in Count II.

Proper analysis of the statute begins, and ends, with what it actually says. (Even though it will become clear later in the judicial proceedings that the legislature never intended either section charged in the indictment to apply to a governor’s threat to veto, and then actual veto, that intent is irrelevant. The statute says what it says, and there is no need to go beyond it.)

First, the section requires [1] a specific “intent.” Since this is the defendant’s state of mind, almost always it must be proved by circumstantial evidence.

That specific intent must be to “obtain a benefit,” which is not charged, or to [2] “harm another,” which has been charged. Presumably, here the “harm” was Perry’s veto of a legislative appropriation, and the “another” was the Public Integrity Unit (which may or may not be considered “another” under the statute).

That specific intent to harm another must manifest itself in a [3] “misuse,” a standard definition of which is “to use improperly.” In other words, the indictment charges Perry with improperly using appropriated funds by line-item-vetoing them. A novel kind of “misuse,” to put it mildly.

All three of these essential elements of the Section 39.02 crime the prosecutor must prove.

Count II: Perry “by means of coercion, to-wit: threatening to veto legislation . . . to provide funding for the . . . Public Integrity Unit . . . unless [the] . . . District Attorney . . . resigned . . . “intentionally or knowingly . . . attempted to influence [her] . . . in the specific performance of her official duty, to-wit: the duty to continue to carry out her responsibilities . . . .”

Translation: Perry threatened to use his line-item veto unless the DA resigned. Why did he want her to resign? Because she was a drunken, abusive, irresponsible, literally unethical law enforcement public servant who, in Perry’s sound judgment as Governor of the State of Texas, had necessarily lost his confidence and that of the public, bench, and bar of Travis County, Texas.

Though not cited in the indictment, this sounds like the Texas law entitled “Coercion of Public Servant or Voter.”

V.T.C.A., Penal Code § 36.03
§ 36.03. Coercion of Public Servant or Voter

     (a) A person commits an offense if by means of coercion he:

          (1) [A]ttempts to influence a public servant in a specific exercise of his official power or a specific performance of his official duty or influences or attempts to influence a public servant to violate the public servant's known legal duty....

What are the essential elements of this crime?

Per Section 36.03, the prosecution would have to prove that Perry’s threat to veto the funding sought to influence the DA’s [1] specific [2] exercise [3] or performance or [4] violate her known legal duty. Putting aside the policy absurdity of this count because threatening to veto is what mayors, governors, and presidents do every day of the week, and putting aside the unacceptable democratic and separation of powers implications of every county DA in America holding a criminal charge over the heads of elected executives who threaten to, or actually, veto, the fatal problem with Count II is that the prosecutor must prove [1] and either [2], [3] or [4] of these essential elements of the Section 39.02 crime.

But he can’t, unless the jury is as corrupt as he is.

Focusing on the alleged threat, and even accepting for the sake of argument that under Texas law it could be considered coercive, it was not aimed at any of the DA’s specific exercise or performance, or sought to coerce violation of any of her legal duties

Perry did not want to influence the DA. He wanted her gone. The governor of Texas was commendably trying to coerce the drunken, abusive, irresponsible, literally unethical DA to resign—a far cry from what Section 36.03 expressly makes a crime (and from what the intent of the Texas legislature must have been when it enacted the statute).

The indictment’s express allegations that Perry’s coercion was aimed at a specific aspect of the DA’s exercise or performance, or sought to cause her to violate her legal duty, is as sham as the entire indictment itself.

One last—but crucially important—point. Regarding Count I—Section 39.02, Abuse of Official Capacity—there are a mere 4 reported cases: Goldsberry, Campbell, Megason, and Trevino. Not a single one of them is relevant to the facts of the Perry case. Regarding Count II—Section 36.03, Coercion of Public Servant or Voter— there are only 2 reported cases: Tobias and Philipps. As with Count I, neither one is relevant to the facts of the Perry case. In other words, there is no Texas case-law precedent, none, to support either criminal charge that has been brought against Governor Perry for his threat or his veto.

The indictment—which should be an embarrassment to every fair-minded member of the Texas bench and bar—deserves to be promptly quashed. 

Please forward this blog far and wide.

Professor Emeritus
Brooklyn Law School